Allen v. Ramey , 226 S.W. 489 ( 1920 )

The land in question belonged to the community estate between T. R. Chaney and his second wife, appellee Mrs. Lillian Chaney. It was their homestead at the time he died. Chaney did not leave a will, and therefore his undivided half interest in the land passed to his five children, each of whom took an undivided one-fifth thereof, or an undivided one-tenth of the whole tract, subject alone, in the absence of indebtedness of the character specified in article 3427, Vernon's Statutes, as was the case, to the homestead right therein of said Chaney's widow and their minor children. Const. art. 16, §§ 50, 52; Vernon's Statutes, art. 2469. The land, because homestead, was not subject to administration as assets of Chaney's estate. Dorman v. Grace, 57 Tex. Civ. App. 386, 122 S.W. 401, and authorities there cited; Ross v. Martin, 128 S.W. 718; Bonding Co. v. Logan, 106 Tex. 306, 166 S.W. 1132. And it could not be sold to pay an allowance under the statute to the widow and minor children. Kimmons v. Abraham, 176 S.W. 671.

The law being as stated, no reason is apparent in the record why the court below refused appellants the relief they sought.

The suggestion in the brief of Mrs. Lillian Chaney and her children that the land had ceased to be homestead at the time the probate court set it aside as an allowance to them under the statute, and at the time said court ordered it sold, because they had abandoned it and acquired a home elsewhere, would be entitled to consideration if the question was as to whether the land should be partitioned among its owners or not. Vernon's Statutes, arts. 3424, 3425. But that is not the question. The suit was not for a partition of the land. It was to recover an undivided interest therein, which appellants claimed to own, and to be admitted to the possession thereof jointly with the owners of the other undivided interests. The title appellants had to the interest they claimed vested in them at once on the death of R. T. Chaney, and was in no wise dependent on whether said Chaney's widow and minor children continued to use it as a homestead or not. Hoefling v. Thulemeyer, 142 S.W. 102.

A further contention made in said brief of appellees Mrs. Lillian Chaney and her children in support of the judgment is that it appeared from the testimony that the part paid appellants Mrs. Allen and Mrs. Hatchett of the proceeds of the sale of the stock of groceries, mentioned in the statement above, equaled the value of their interest in their father's estate. Whether, if it appeared that the payment to them was on account of that interest, the payment could be urged as a defense to the recovery sought by them, or could be urged only in proceedings to partition that estate, need not be determined. The only testimony in the record as to that payment was that it was in satisfaction of indebtedness of said appellants' father to them on account of property they took from their mother's estate and which he had used for purposes of his own. Certainly a payment to them on that account was not an answer to their suit to recover an interest they owned in their father's estate. If their father justly owed them on the account stated the money the temporary administrator paid them out of the decedent's estate, it may be that in a proper suit against them, or against the temporary administrator and his bondsmen, the money could be recovered back; but it could not be recovered on the case made by the pleadings in this cause, nor allowed as a defense to the recovery by said appellants of the interest they owned in the land in controversy.

There is as little merit, we think, in the contention made by appellees that appellants were not entitled to relief because the suit was in effect a collateral attack on the validity of the order of the probate court directing a sale of the land and the order of said court confirming the sale made in conformity to its direction. The orders were not merely voidable because erroneous. They were void for lack of power in the probate court to make them. Dignowity v. Baumblatt, 38 Tex. Civ. App. 363,85 S.W. 834; Kimmons v. Abraham, 176 S.W. 671; Modern Woodmen v. Yanowsky, 187 S.W. 728; Ross v. Martin, 128 S.W. 718. Therefore the rule invoked by appellees with reference to collateral attacks on judgments has no application in the case. Paul v. Willis, 69 Tex. 261, 7 S.W. 357; Dignowity v. Baumblatt, supra; Stephenson v. Marsalis, 33 S.W. 383; Ross v. Martin, supra.

The judgment will be reversed, and judgment will be rendered in favor of appellants for the two-fifths undivided interest they own in one-half of the land in controversy.